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Blair v. CBE Group Incorporated

United States District Court, S.D. California

May 26, 2015

LINDA BLAIR, et al., Plaintiffs,
v.
THE CBE GROUP INCORPORATED, Defendant.

ORDER IMPOSING SANCTIONS

WILLIAM V. GALLO, Magistrate Judge.

I. INTRODUCTION

Class-related discovery closed in this case on January 21, 2015. On January 20, 2015, Defendant conducted Plaintiff Linda Blair's deposition, and on January 21, 2015, Defendant conducted Plaintiff Shannon Collins' deposition. On February 20, 2015, Plaintiffs mailed Defendant hard copies of errata sheets to the deposition transcripts of both Plaintiffs Blair and Collins. Defendant received the two errata sheets on February 25, 2015. Upon receiving the errata sheets, Defendant determined that there was a dispute as to the validity of the errata.

A. DISPUTED ERRATA PRESENTED TO THE COURT

Plaintiff Blair's errata sheet to her deposition listed the following errata, all of which Defendant disputed:

Plaintiff Collins' errata sheet to her deposition listed the following errata, all of which Defendant disputed:

B. BACKGROUND

On March 24, 2015, Defendant emailed Plaintiffs to inform them that Defendant disputed their errata sheets. Defendant requested to meet and confer by March 27, 2015. Plaintiffs did not respond to Defendant's email. On March 25, 2015, at 11:00 a.m., Defendant emailed Plaintiffs for a second time and requested to meet and confer that day. Defendant stated that if Plaintiffs did not meet and confer, Defendant would contact the Court. At 12:07 p.m. that day, Plaintiffs replied to the email and stated that they could make themselves available briefly to meet and confer telephoni-cally at 4:00 p.m. that day. At 3:15 p.m., that same day, before the parties had engaged in a meet and confer session, Defendant unilaterally notified the Court of the errata dispute. During its phone call to the Court, Defendant represented that Plaintiffs had not yet made themselves available for a meet and confer session. On March 25, 2015, at 4:00 p.m., the parties telephonically met and conferred regarding the errata dispute.

On March 26, 2015, the Court held a telephonic Discovery Conference with counsel for all parties. The Court ordered the parties to meet and confer in good faith regarding the two errata sheets at issue. (Doc. No. 146 at 2.) Subsequently, the parties resolved some of the disputes related to the errata sheets through meet and confer efforts, but disputes remained over three of the proposed errata on Plaintiff Collins' errata sheet.[1] Pursuant to the Court's March 26, 2015 Order, the parties were to lodge a Joint Statement for Determination of Discovery Dispute with the Court by April 1, 2015, at 5:00 p.m. if any disputes remained. Despite the 5:00 p.m. deadline, the parties filed a Joint Statement Regarding Errata Sheet of Plaintiff Collins ("Joint Statement") on April 1, 2015, at 5:02 p.m.[2] (Doc. No. 147.)

On April 2, 2015, this Court issued an Order Setting Briefing Schedule for Orders to Show Cause, Striking Errata that Remain in Dispute. (Doc. No. 148.) The Court admonished the parties for filing their Joint Statement after the deadline, in direct violation of this Court's March 26, 2015, Order. (Doc. No. 148 at 3; citing Doc. No. 146.) Due to the parties' failure to file their Joint Statement in a timely manner, and failure to comply with this Court's Order, the Court denied the parties' request for guidance regarding the remaining three errata corresponding to Plaintiff Collins' deposition. Id . 3-4.

The Court issued a ruling regarding the errata dispute. (Doc. No. 148 at 4.) During the March 26, 2015, Discovery Conference, the Court had addressed the Ninth Circuit's interpretation of Rule 30(e), which governs depositions by oral testimony. Fed.R.Civ.P. 30(e). The Court again addressed the Ninth Circuit's interpretation in its Order. Id. at 4-6; citing Hambleton Bros. Lumber Co. v. Balen Enters., Inc., 397 F.3d 1217, 1226 (9th Cir. 2005) ("Rule 30(e) is to be used for corrective, and not contradic-tory, changes.") The Court determined that, with the exception of one proposed change correcting the area code of a telephone number, all of the proposed changes set forth on the errata sheets for Plaintiffs Blair and Collins were complete contradictions to their deposition testimony. (Doc. No. 148 at 5.) The Court noted that Plaintiffs' counsel was present during the depositions and did not take the opportunity to ask clarifying questions while Plaintiffs were still under oath. Id . The Court also noted that, as discussed during the Discovery Conference, both Plaintiffs Blair and Collins were told at the beginning of their depositions to simply let Defense counsel know if they did not understand a question. Id . Plaintiffs were told that if they provided an answer to a question during the deposition, it was assumed that they understood that question. Id . For these reasons, the Court ordered that the errata that remained in dispute were improper and were therefore stricken. Id. at 5-6. Although the Court was prepared to strike all of the other errata listed on the errata sheets of both Plaintiff Blair and Collins, with the exception of the errata correcting an area code, counsel for all parties represented to the Court that the disputes with the other errata were resolved. Therefore, the Court only struck the disputed errata of Plaintiff Collins listed in the parties' Joint Statement. Id., n.2.

The Court also ordered the parties to file separate briefs detailing why sanctions should not be imposed against them. (Doc. No. 148 at 6.) Plaintiffs were ordered to explain why sanctions should not be imposed for submitting disingenuous and meritless errata sheets after the discovery cutoff in an attempt to completely change deposition answers previously given under oath. Id . Defendant was ordered to explain why sanctions should not be imposed for asserting untimely objections to Plaintiffs' errata sheets. Id . On April 9, 2015, in compliance with this Court's Order, Plaintiffs and Defendant filed OSC Responses. (Doc. Nos. 149, 150.) On April 23, 2015, this Court issued an Order Setting Show Cause Hearing for Plaintiffs and Defendant; Tentative Opinion. (Doc. No. 161.) The Court ordered counsel for all parties to attend an OSC Hearing set for April 24, 2015, at 9:30 a.m. Id. at 17-18.

II. ARGUMENTS

A. PLAINTIFFS' ARGUMENT

1. DEFENDANT'S PROCEDURAL ISSUES

Plaintiffs argued that Defendant's request to strike Plaintiffs' errata sheets should have been denied on procedural grounds. They asserted that Defendant brought the dispute to the Court's attention past the deadline, without a meet and confer session, unilaterally called the Court without any notice to Plaintiffs, and ignored the Court's prior order that all such calls shall be made jointly.

2. PLAINTIFFS' COMPLIANCE WITH RULE 30(e)

Plaintiffs also argued that the errata sheets were consistent with Rule 30(e). They claimed that Plaintiff Blair and Collins realized they made a few misstatements during their depositions because they did not understand the questions. They argued that Defendant provided by stipulation on the record that Plaintiffs would have 30 days to review their deposition transcripts and make edits. Id . In an effort to keep their deposition testimony consistent with their discovery responses, Plaintiffs submitted the errata sheets.

Plaintiffs' counsel acknowledged that Defense counsel did provide an instruction that Plaintiffs needed to ask for clarification if they did not understand a question, but noted there was a lot of pressure on Plaintiffs during the depositions. Afterwards, they sought to correct items where they previously made misstatements.

Plaintiffs noted that, after meet and confer efforts, they withdrew all but three of the disputed errata. They argued that if Defendant had met and conferred prior to bringing the dispute to the Court's attention, the other errata would possibly have been withdrawn before the Court became involved. They also argued that there are only a few errata, and even if the Court is correct in its interpretation of Ninth Circuit law, Plaintiffs' conduct is not sanctionable.

a. PLAINTIFF BLAIR

Plaintiffs argued that Plaintiff Blair was confused about the class representa-tive questions as phrased during her deposition. They explained that the terminology involving her duties of representation "threw her for a loop." In response to the Court's questioning, Plaintiffs indicated that Plaintiff Blair realized her confusion on her own and after discussion with Plaintiffs' counsel. Plaintiffs stated that all three named Plaintiffs called counsel's office after they reviewed their deposition transcripts because they wanted to know how to use the errata to change their deposition responses. They argued that there is a duty of candor to the Court, and Plaintiff Blair had to sign her deposition transcript to certify that the responses were true and correct.

Addressing Plaintiff Blair's response about whether she had reviewed any court documents before they were filed, Plaintiffs argued that she did not understand what was meant by "court documents." They claimed that it was not until she reviewed the court documents at home after her deposition that she realized she had made misstatements. Plaintiffs argued that she was also unsure about the questions related to reviewing discovery requests.

b. PLAINTIFF COLLINS

Plaintiffs claimed that Plaintiff Collins' deposition amendments were supported by the prior records in this case. They argued that, since Plaintiff Collins' addition to the litigation in May of -, it has been her position that she received autodialed calls to her cellular phone for which she provided no prior express consent. They asserted that, upon Plaintiff Collins' review of the deposition transcript, it became clear to her that she misunderstood the line of questioning and thus provided incorrect testimony during her deposition. Plaintiffs claimed, in order to certify that the transcript was true and correct, Plaintiff Collins' was obligated to clarify the record.

B. DEFENDANT'S ARGUMENT

1. TIMELINESS OF ERRATA DISPUTE

Defendant stated that it received the errata on February 25, 2015, and therefore, the 30 day deadline from the event giving rise to the dispute could have been March 25, 2015 [33 days (30 days, plus three for mailing) from the date of mail service]; or March 27, 2015 [30 days from the date of receipt]. Defendant contended that, out of an abundance of caution, it asked Plaintiffs to ...


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